OAH Docket No. 7-2200-17318-2

 

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA POLLUTION CONTROL AGENCY

 

In the Matter of the Administrative Order Designating the Vierling Animal Feeding Operation as a Concentrated Animal Feeding Operation

 

 

FIRST PREHEARING ORDER

 

          Administrative Law Judge Richard C. Luis presided over a telephone conference in this matter on July 12, 2006.  The parties discussed discovery, scheduling, and other issues in order to expedite this matter.

          Robert B. Roche, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127, appeared on behalf of the Minnesota Pollution Control Agency (MPCA Staff).  Chad Lemons and Trevor Oliver, Kelly & Fawcett, P.A., 2350 Piper Jaffray Plaza, 444 Cedar Street, Saint Paul, MN 55101, appeared on behalf of Respondents Michael and Becky Vierling, d/b/a Vierling Farms.  Kevin Reuther, Staff Attorney for Minnesota Center for Environmental Advocacy (MCEA), 26 East Exchange Street, Suite 206, St. Paul, MN 55101-1667, appeared on behalf of the MCEA.

Based upon the discussions of the parties in this matter, the Administrative Law Judge makes the following:

ORDER

1.               Persons who wish to intervene in this proceeding are requested to file a written Petition to Intervene with the Administrative Law Judge no later than August 15, 2006, as set forth in Minn. R. 1400.6200.  Any objections to the petitions shall be filed by August 22, 2006.  The Petition shall be served upon all existing parties, and a Notice of Appearance shall be filed with the Petition.

2.               All discovery requests and responses will be provided to each of the parties to this proceeding, through their respective counsel.  New discovery requests must be made no later than October 30, 2006.  All discovery requests are ongoing and subsequently-obtained information that is responsive to a discovery request must be provided.  Counsel for the MPCA Staff and counsel for MCEA will avoid duplication of discovery requests.

3.               Any motions for summary disposition, motions in limine, or other prehearing motions must be filed no later than November 16, 2006.  All prefiled direct testimony is incorporated by reference into the motion pleadings and that testimony shall not be duplicated as an exhibit to any party’s motion or reply.  The Administrative Law Judge will advise the parties of the deadline for any reply and if a change in the schedule is necessitated by the filing of any such motion.

4.               Direct testimony in this matter will be prefiled by the parties, no later than November 6, 2006.  Rebuttal testimony will be prefiled by the parties, no later than November 21, 2006.  All prefiled testimony will be in either question-and-answer format or narrative format.  Any attached documents will be identified in the prefiled testimony of the witness and each document’s significance explained in that testimony.  Any new affirmative matter that is not offered in reply to another party’s direct case will not be allowed in rebuttal testimony.

5.               Only witnesses who have prefiled direct or rebuttal testimony may be called to testify, except by leave of the Administrative Law Judge.  To the extent possible, any such witnesses will be identified five days before the hearing and a brief summary of the expected testimony will be provided to the parties and the ALJ.

6.               Prefiled testimony will be marked as an exhibit and offered for admission into the record at the hearing.  Prefiled testimony that is not offered into the record shall be considered withdrawn and no witness shall be cross-examined concerning the withdrawn testimony.  Except for good cause shown, all revisions or corrections to any prefiled testimony shall be in writing and served upon the Administrative Law Judge and the parties no later than five days prior to the commencement of the hearing.  Each witness will have ten minutes to briefly summarize the prefiled testimony before being subject to cross-examination.  No new issues may be raised during this summary.

7.               The hearing in this matter is scheduled for December 5 and 6, 2006, at the Office of Administrative Hearings, 100 Washington Avenue South, Suite 1700, Minneapolis, Minnesota.  The MPCA Staff will offer its witnesses first, followed by Respondents, then intervenors in the order of their intervention.  Witnesses will be examined by counsel, with each party designating one representative to examine each witness in one area.  Parties may not examine witnesses with multiple counsel in a single issue area.  A witness may be examined on initial redirect in an area not raised on cross-examination to address the testimony of another witness.  After initial redirect, redirect examination will be limited to the scope of cross-examination.  The parties will confer regarding use of a court reporter.  If a court reporter is needed, the parties shall advise the Administrative Law Judge, no later than five days prior to the hearing.

8.               Telephone conferences will be held in this matter as needed by the parties to address any issues that arise before the hearing.

9.               To summarize, the schedule in this matter is as follows:

 

Intervention Deadline

August 15, 2006

Discovery Deadline

October 30, 2006

Prefiled Direct Testimony

November 6, 2006

Motion Deadline

November 16, 2006

Prefiled Rebuttal Testimony

November 21, 2006

Revisions and Corrections, Additional Witness Request Deadline, and Court Reporter

November 28, 2006

Hearing

December 5-6, 2006

 

 

 

Dated:  July 12, 2006.

 

 

                                                                      _/s/ Richard C. Luis___________

                                                                      RICHARD C. LUIS

                                                                      Administrative Law Judge